Will Rogers once said, “If you find yourself in a hole, stop digging.” These are words that the gun control movement might want to take to heart.
One of the great political ironies is the fact that, the more that the anti-gun forces try to restrict or eliminate gun rights, the more that they force the courts to confront the language of the Second Amendment, and to expressly define these rights to strike down restrictions.
The biggest obstacle that the anti-gun forces have is the fact that the language of the Second Amendment declaring that the “right of the people to keep and bear arms shall not be infringed” is direct, unambiguous, and absolute. The claim that it merely authorizes a militia is just a desperate bit of sophistry. The “militia” argument ignores the fact that, at the time the Constitution was written, a “militia” was an ad hoc assembly of citizens into a military force, which necessitated private gun ownership since there were no publicly maintained armories and every citizen was expected to furnish their own weapon. Ironically, the ruling in the 1939 Miller case, which is often cited in support of the militia interpretation, referred to the militia language to find that possession of a sawed-off shot gun was not protected since it is not the sort of weapon that the military would use, and thus implied that the military-style assault rifles that liberals so abhor are protected.
Historically, the Supreme Court of the United States has preferred to ignore the Second Amendment, and by the absence of any express holdings on the extent of the right, allowed government some space in which to craft laws that were widely accepted as sensible regulation of gun ownership. For example, background checks, the prohibition on the ability of felons and maniacs to buy guns, age requirements, and restricting machine guns and artillery are limitations that most people approve of. But as the anti-gun people have pushed harder and harder to eliminate or severely restrict all gun ownership, the court has been forced to act, and the outcome has not been to the liking of anti-gun liberals.
The current expression of Second Amendment rights began with the Heller case in 2008, striking down a law in which the District of Columbia had attempted to effectively outlaw the private ownership of handguns. In Heller, SCOTUS for the first time expressly delineated a private right to gun ownership by citizens, rejecting the “militia” argument. Later cases extended the ruling to the states.
In the current case under consideration by SCOTUS, a New York law restricting the issuance of concealed carry permits to only those persons who can convince the government that they have a special need to carry a gun in public, is being challenged. In application, this law has been used to deny permits to almost everyone who applied. My prediction: The court will rule that concealed carry permits must be issued unless the government can delineate specific and reasonable grounds why the application shouldn’t be granted. Reasonable training and competency requirements may be required, but arbitrary rejection of an application will be prohibited.
Most of us, including the conservative justices, don’t want to live in a “Wild West” environment in which most of the public is armed. Most of us can think of people who, although nominally qualified, should not be carrying a gun due to temperament or poor judgment. But the Second Amendment says what it says, and the justices are bound to observe the terms of the Constitution, and not just implement their own policy preferences. Legislative overreach pandering to the anti-gun people may force the court to act to reach a conclusion that they would have preferred to avoid.
The liberal agenda has also encouraged the proliferation of guns in other regards. The last couple of years have seen gun sales skyrocket as more of the public, including increasing numbers of women and minorities, purchased guns for self-protection against crime and civil disorder. The increase in violent crime, the rioting which the left has cheered, together with “catch and release” justice, and acts like the effective decriminalization of “minor” crimes like auto burglary and shoplifting, has frightened the public and made them feel vulnerable. Proposals to defund or abolish the police have convinced many that they must defend themselves. The more lawless our society becomes, the more the demand for guns will grow.
My advice? Instead of indulging your emotional loathing of guns and forcing the court into making decisions you won’t like, you might instead try working to increase public safety to reduce the demand for self-protection. Abandoning the war on the police, the campaign to free criminals, and your cheerleading for “good” rioting, would be a start.
You’ll have to make a choice: Actually act to reduce the number of guns, or just engage in empty political gestures to show how much you care.
Try to “stop digging” now. Δ
John Donegan is a retired attorney in Pismo Beach who is not quick enough on the draw to survive for long in the Brave New World the Democrats are creating. Send a response for publication to letters@newtimesslo.com.
This article appears in Mar 10-17, 2022.
The First Muster was in Salem, Massechussetts in 1637 and consisted of citizen-soldiers being trained on a regular basis by professional soldiers who had fought in Europe, hired by the town of Salem. The ‘unambiguous’ part of the 2nd Amendment that you conspicouously left out is “A well-regulated militia being necessary to the security of a free state”
@Steve Felton: As the Heller decision found, the militia language was a preface explaining the NEED for the right, not the right itself. The drafters easily could have provided that the states had the right to maintain a militia, if that is what they intended. Instead, they decreed a “right of the people”.
The problem with the bad Heller decision is that it used a faulty characterization of history to buttress the Scalia ideology of “originalism.” To clarify, Heller is not bad history because it rules that individuals had the right to bear arms outside of participation in the militia.
It is bad history because it viewed the individual right to bear arms as why the amendment was written in the first place; it is bad history in its claim that the Second Amendment protected “ONLY INDIVIDUALS’ LIBERTY TO KEEP AND CARRY ARMS.” With this approach, Scalia shifted the decision from a questionable but defensible answer to the question the court had been asked, to a mischaracterization of the nature of the amendment itself. That mischaracterization, rather than the decision itself, is what makes Heller such bad history, and therefore a flawed legal decision.
It is possible with clever, deft lawyerly analysis and dissection to make nearly any language mean something entirely different than what it appears to plainly state. That is how lawyers make a living, and one of the reasons they are so distrusted by the public. However, that does not make their tortured argument true. The Framers were not semi-literate slobs who were incapable of expressing themselves clearly, and if they truly intended to authorize a militia they could have easily said so directly. Instead, they succinctly and directly created a “right of the people”. The plain meaning of the language in the 2nd Amendment is clear.
The second amendment was written so that an armed militia of citizens could counteract a tyrannical federal government more than 200 years ago (things have changed). Not sure Madison wanted to give gun rights to 17-year old incels, such as Kyle Rittenhouse, so they can run around a town, with a weapon more high powered than anything Mr. Madison could have imagined, thinking they were protecting property.
Tennessee’s GOP governor appointed Jordan Mollenhour to State Education Board. He owns Lucky Gunner, which sold ammo to the Aurora Colorado and Santa Fe, Texas mass shooters. Stop digging? You mean graves for schoolchildren?
@SteveFelten: Joe Biden has nominated a former public defender, Jackson, to the Supreme Court. The duty of a public defender is to free their client, even if they are guilty of murder, and a freed murderer is likely to kill again. So it seems like Biden and his nominee are the ones digging graves for schoolchildren and others.